• Publishers Issue Urgent Appeal To New York Legislators To Stop Copyright Infringement

    June 6, 2024
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    The American Association of Publishers, the Independent Book Publishers Association, and
    other organizations representing copyright holders have issued an appeal to New York legislators
    to oppose Assembly Bill A10544 and corresponding Senate Bill S6868 would blatantly violate
    U.S. Copyright law. If adopted, the New York bills would allow the state to dictate the terms
    under which publishers license and sell their content to libraries. This blatant interference by the
    state in dictating the terms under which publishers must sell their products not only violates U.S.
    Copyright law, but would also be damaging to publishers, authors, and other content creators.
    Their adoption would also be harmful to New York taxpayers whose tax dollars would be wasted
    defending unconstitutional laws in the courts. We urge you to contact your state legislators and
    tell them to oppose these bills.
    Here is the text of the memo in Opposition to A10544 and S6868:
    “The undersigned organizations represent a broad cross-section of the creative industries,
    including authors, publishers, bookstores, motion pictures, music, newspapers, and software. We
    are writing to express our strong opposition to A10544 and S6868, which would
    unconstitutionally regulate literary works by dictating licensing terms from copyright owners to
    libraries for ebook and other formats.
    “This legislation will harm individual authors and artists, undermine creative industries,
    drastically reduce the value of creative works to the economy, and—as a federal court has
    already found—represents an impermissible state intrusion into an exclusively federal body of
    law. In threatening both the integrity and efficacy of the U.S. Copyright Act, A10544 and S6868
    also threaten the creators and creative industries that depend on a uniform law. It is a poorly
    conceived bill designed to undercut the Nation’s critically important protections of intellectual
    property. In short, it is of grave concern to all of us and the members we represent.

    A10544 and S6868 Will Harm the Creative Industries and New York’s

    “Copyright industries create high-paying jobs and employ millions of people, and the copyright
    economy consistently grows at a faster rate than the overall U.S. economy. Nearly ten million
    people are directly employed by core copyright industries—including books, motion pictures,
    music, software, newspapers, and magazines—and these industries add more than $1.8 trillion in
    annual value to U.S. GDP and create numerous jobs for distribution partners in New York. That
    economic growth is the direct result of a uniform federal system of rights and responsibilities and
    the innovation it spurs.
    “This bill will harm both creativity and competition. By regulating when and how authors make
    their works available, this legislation will artificially devalue competitive markets, not only
    undercutting the royalties that would otherwise be earned by authors, but also exacerbating an
    already difficult economic environment. In addition, this legislation would distort, if not
    cannibalize, the commercial markets that local bookstores rely on, thereby threatening family-

    sustaining jobs that these institutions provide in their communities. S 6868 would threaten the
    very foundation that has governed the disposition of copyrighted works to great success, a
    foundation upon which both libraries and the economy depend.

    “We understand and appreciate the value and critical importance of our public libraries. Book
    publishers of all sizes already make their full digital catalogs available for library lending, and as
    a result, library eBook lending is booming at unprecedented levels, with a dizzying 600 million
    checkouts last year. Indeed, despite arguments to the contrary, there is no market failure that
    would justify the systemic regulation that this bill would establish, even if New York was not
    federally preempted from enacting legislation of this nature. Rather, literary works of all kinds,
    motion pictures, music and software are more broadly accessible than they have been at any time
    in our history.
    “We appreciate that public libraries will naturally aspire to serve as many patrons as possible
    with as many creative works as possible. However, this should not be done at the expense of
    creators whose very livelihoods depend on their ability to control and enforce the use and
    monetization of their works in accordance with the Copyright Act, including vigorously pursuing
    their respective marketplace opportunities. While there may be legitimate reasons to examine
    other ways to support and strengthen public libraries, A10544 and S6868 are harmful and
    unnecessary, with the unprecedented number of digital check outs supporting the premise that
    there is no shortage of support for libraries from publishers.

    A10544 and S6868 Are Unambiguously Unconstitutional

    “Both state governments and courts have rejected the bill’s approach as an illegal and unwise
    attempt to regulate intellectual property. In December of 2021, New York Governor Kathy
    Hochul vetoed almost identical legislation in concluding that “copyright protection provides the
    author of a work with the exclusive right to their works. As such, federal law would allow the
    author, and only the author, to determine to whom they wish to share their work and on what
    terms. Because the provisions of this bill are preempted by federal copyright law, I cannot
    support this bill. 1
    “The federal courts agreed. In 2022, a federal district court swiftly struck down a similar bill
    enacted in Maryland, finding it “unconstitutional and unenforceable because it conflicts with and
    is preempted by the Copyright Act.” It held that the now-overturned Maryland law “stands as an
    obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 2
    Maryland declined to appeal from this well-reasoned decision.
    “A10544 and S6868 Would Decrease Public Access to Books and Other Copyrighted Works
    As organizations who represent authors, artists, creators, and other copyright holders, we are
    committed to ensuring broad access to copyrighted works by bringing those creative works to
    market, and it is the copyright law that makes that possible. Across the creative industries, robust

    federal copyright protection has been the bedrock upon which flexible business models have
    been built, giving consumers more choices than ever before about how, when and where they
    view the content they love. By regulating the license terms of copyrighted works, A10544 and
    S6868 put a chilling effect on these vital freedoms. The legislation encroaches upon these
    freedoms not only by regulating a certain manner of commercial dealing under penalty of law
    but by regulating when and how authors ought to make their works available.
    “In closing, we are happy to support public libraries in ways that do not violate federal law or
    undermine authors, publishers, and other copyright holders. But we must vigorously oppose
    legislation that will hurt small businesses, including bookstores, authors, and other creators and
    that violates the federal copyright framework, endangering our ability to bring books and other
    copyrighted works to the public marketplace.

    “For all of these reasons, we respectfully urge you to reject A10544 and S6868.
    Association of American Publishers
    The Authors Guild
    American Booksellers Association
    American Association of Independent Music
    American Society of Composers, Authors & Publishers
    American Society of Media Photographers
    Broadcast Music Inc
    Copyright Alliance
    CreativeFuture Digital
    Media Licensing Association
    Entertainment Software Association
    Independent Book Publishers Association
    Independent Film & Television Alliance
    Motion Picture Association
    Music Workers Alliance
    National Music Publishers’ Association
    National Press Photographers Association
    New York News Publishers Association
    News Media Alliance Recording Industry
    Association of America Screen Actors Guild
    American Federation of Software & Information Industry
    Association Television and Radio Artists”

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